The
parties raise the issue of whether Plaintiff, Katrina Reed, a
citizen and resident of Canada, is entitled to recover
damages for personal injuries arising from an automobile
accident in Michigan's Upper Peninsula with a vehicle
driven by Defendant, Brian Jones, and owned by his father,
Rodney Jones. Michigan has a “no-fault”
automobile insurance statute which can provide many benefits
to insureds, but which can also prevent recovery through
ordinary litigation in court. M.C.L. § 500.3135. The
question presented by the parties' cross-motions for
summary judgment is whether Ms. Reed has presented sufficient
evidence so that she can present her case to a jury.

NON-ECONOMIC
LOSS

The
first issue is whether Ms. Reed can recover damages for
non-economic loss. A tortfeasor remains liable under
Michigan's No-Fault Act for non-economic loss caused by
negligent use of a motor vehicle if the injured person
suffered “death, serious impairment of body function,
or permanent serious disfigurement.” M.C.L. §
500.3135(1). A plaintiff seeking to establish that she
suffered a serious impairment of body function must
demonstrate “(1) an objectively manifested
impairment… (2) of an important body function…
that (3) affects the person's general ability to lead his
or her normal life.” McCormick v. Carrier, 487
Mich. 180, 215, 795 N.W.2d 517, 537 (2010). “[T]he
court should determine whether there is a factual dispute
regarding the nature and extent of the person's injuries,
and, if so, whether the dispute is material to determining
whether the serious impairment of body function is
met.” Id. (citing M.C.L. §
500.3135(2)(a)(I) and (ii)). This test is treated as a
question of law for the court only “[i]f there is no
factual dispute[] or no material factual dispute.”
Id.

To be
“objectively manifested, ” the impairment must be
“evidenced by actual symptoms or conditions that
someone other than the injured person would observe or
perceive as impairing a body function.”
McCormick, 487 Mich. at 196, 795 N.W.2d 517 at 527.
There must also be a causal link between the injury and the
accident. See Mehdi v. Gardner, No. 319630, 2015 WL
1227710, at *2 (Mich. Ct. App. Mar. 17, 2015). This prong
cannot be satisfied by a plaintiff's testimony regarding
pain and suffering alone; there must be a physical basis to
support the subjective complaints of pain and suffering,
which generally requires medical testimony.
McCormick, 487 Mich. at 198, 795 N.W.2d 517.

Plaintiff
claimed in her June 27, 2016 deposition to have the following
symptoms:

• Plaintiff is unable to perform various physical
activities that she was able to before the accident,
including kickboxing, biking, weight lifting, step and spin
classes, yoga and Pilates.

• Plaintiff lost strength and flexibility.

• Plaintiff struggles with housework.

• Plaintiff has discomfort after sitting or standing for
extended periods of time and walks with a limp.

(ECF No. 44-1 at PageID.344-62.) However, these are
subjective symptoms. The sole evidence Ms. Reed presented as
evidence of objective symptoms to show an objectively
manifested impairment is the affidavit of Dr. Michael
Nenonen, a Canadian chiropractor, who said Ms. Reed:

• Has a limited and painful range of motion in her neck,
left hip, and left elbow.

• Has various symptoms of pain and discomfort that
prevent Plaintiff from carrying on strenuous physical
activity.

(ECF No. 43-2 at PageID.286-87.) There is some question about
when Plaintiff actually began seeing Dr. Nenonen for
treatment of injuries sustained in the accident. Dr.
Nenonen's affidavit, dated September 14, 2016, indicates
that he had been treating Plaintiff “for over three
years.” (ECF No. 43-2 at PageID.286.) Plaintiff
indicated in her June 27, 2016 deposition that she began
seeing Dr. Nenonen about eight months after the accident, and
had been getting treatment for the past two years. (ECF No.
45-1 at PageID.342-44.) Documents obtained by ...

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